Citation Nr: 0819614
Decision Date: 06/13/08 Archive Date: 06/18/08
DOCKET NO. 04-28 717A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for an acquired
psychiatric disorder as a result of sexual assault.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1969 to January
1971.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO).
In April 2008, the veteran testified before the undersigned
at the RO. A transcript of the hearing is associated with
the claims file.
The Board notes that a July 1971 rating decision denied
entitlement to service connection for a nervous disorder.
The veteran did not appeal this decision. In order to reopen
such a claim, the veteran must submit new and material
evidence. 38 C.F.R. § 3.156 (2007). However, the veteran
has since claimed that his psychiatric disorder is a result
of a sexual assault. Since this claim is different than that
in 1971, the Board will consider it as a new claim. As such,
the veteran does not have the burden of presenting new and
material evidence before the Board will evaluate the claim on
the merits.
FINDINGS OF FACT
1. There is no competent evidence of a diagnosis of PTSD.
2. An acquired psychiatric disorder was not manifest in
service and is not otherwise related to inservice trauma.
CONCLUSIONS OF LAW
1. PTSD was not incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007).
2. An acquired psychiatric disorder was not incurred in or
aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007);
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claims; (2) that VA will seek
to provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claims, in accordance with 38
C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable RO decision on a
claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
Here, the veteran's claim was received after the enactment of
the VCAA.
A letter dated in January 2003 informed the veteran of what
the evidence needed to show to establish a claim for service
connection. He was told of the special procedures regarding
claims of PTSD due to personal assault and provided with a
form to return to the RO, describing his personal assault.
A letter dated in June 2004 told the veteran that VA would
make reasonable efforts to obtain evidence necessary to
support his claims. He was informed that he was required to
provide sufficient information to allow VA to obtain records.
He was asked to identify any VA or private medical treatment.
The various types of evidence that might support his claims
were listed. The letter outlined VA's responsibilities with
respect to obtaining evidence on the veteran's behalf. The
veteran was asked to submit any evidence in his possession
that pertained to his claims.
The Board also notes that during the pendency of this appeal,
on March 3, 2006, the Court issued a decision in the appeal
of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held
that the VCAA notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include: 1)
veteran status; 2) existence of a disability; 3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id. at 486. The
veteran was provided with such notice in March 2006.
While the VCAA notice in this case was not provided prior to
the initial adjudication, the notice was provided and
subsequently readjudicated by the RO in the supplemental
statement of the case dated in January 2008, which was prior
to the transfer and certification of the case to the Board.
The Board finds that the content of the notice provided to
the veteran fully complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's
duty to notify. The veteran has been provided with every
opportunity to submit evidence and argument in support of his
claims and to respond to VA notices. Further, the Board
finds that the purpose behind the notice requirement has been
satisfied because the veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims.
Although the veteran received inadequate preadjudicatory
notice, and that error is presumed prejudicial, the record
reflects that he was provided with a meaningful opportunity
such that the preadjudicatory notice error did not affect the
essential fairness of the adjudication now on appeal.
Moreover, the hearing testimony reflected knowledge of what
must be shown to warrant service connection in this case.
The Board is unaware of any outstanding evidence or
information that has not already been requested. Therefore,
the Board is satisfied that the RO has complied with the duty
to assist requirements of the VCAA and the implementing
regulations. Neither the veteran nor his representative has
contended that any evidence relative to the issue decided
herein is absent from the record. The Board notes that the
veteran indicated he was in receipt of Social Security
Administration benefits for his essential tremors. Since
this is regarding a neurological disability not at issue
here, the Board does not need to obtain such records. The
veteran has been afforded an examination on the issues
decided herein. McLendon v. Nicholson, 20 Vet. App. 79
(2006).
For the foregoing reasons, it is not prejudicial to the
veteran for the Board to decide this appeal.
Applicable Law and Factual Background
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38
C.F.R. § 3.303(a) (2007). Service connection may also be
granted for a disease first diagnosed after discharge when
all of the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Direct service connection generally requires evidence of a
current disability, evidence of in-service incurrence or
aggravation of a disease or injury; and evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. See Caluza v. Brown, 7 Vet. App.
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).
See also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002).
The veteran's service medical records show that his entrance
psychiatric examination was normal in May 1969. He reported
no depression, excessive worry, or nervous trouble of any
sort.
A July 1969 service record shows the veteran complained of
shaking of his hands, especially while eating. It was noted
that he was just out of boot camp and was having acute
anxiety. A September 1969 service medical record shows the
veteran was seen for psychiatric consultation because of
volunteering feelings of nervousness, depression, and
feelings of inadequacy since being on board ship. He worried
about his hands shaking. He associated his nervousness with
confrontation and criticism from his immediate command.
Following examination, the diagnosis was adolescent
maladjustment reaction, possibly falling under general
emotional immaturity.
A November 1969 service record shows the veteran had an
emotional crisis regarding his recent AWOL for one hour. He
was very apprehensive, anxious, and depressed. A subsequent
November 1969 record shows the veteran reported that he had
been beaten by three men. There was marked swelling of the
nose and facial area. Examination revealed multiple
contusions of the face and possible fractures of the nose and
wrist. The veteran stated that he was riding with three
unnamed men when they began assaulting him.
In September 1970, the veteran was again given psychiatric
evaluation and determined to have the same diagnosis of
emotionally immature personality. The December 1970
discharge examination indicated the veteran's psychiatric
examination was abnormal. It was noted he had been diagnosed
with emotional immaturity, chronic, existed prior to
enlistment, not considered disabling.
Service personnel records dated in December 1970 show the
veteran was deemed to be unsuitable for naval service and
discharged for this reason in January 1971. The diagnosis
was noted to be emotionally immature personality disorder.
In March 1971, the veteran underwent VA examination. He
complained of being tense and irritable and avoiding people
because of his temper and depression. Following examination,
the diagnosis was neurosis, depressive reaction, acute
severe, characterized by anxiety problems in a schizoid
personality. He was currently receiving outpatient
treatment.
In a June 1971 opinion, a Board of specialists reviewed the
veteran's claim. They indicated that the veteran had two
psychiatric examinations in service, in September 1969 and
September 1970. The September 1969 examination report showed
no clinical evidence of depression. The September 1970
report showed no evidence of serious mental illness, either
psychoneurosis or psychosis. There was no evidence in the
record to indicate the depressive neurosis existed clinically
during the veteran's active service, either as a diagnosed
condition or as the then diagnosed emotionally immature
personality.
In a July 1971 rating decision, the RO denied entitlement to
service connection for a nervous condition.
A July 2002 VA outpatient record shows the veteran began
withdrawing from interaction with others after the deaths of
his family members and the financial problems of his
business. Eighteen months ago, the veteran was arrested for
indecent exposure. The veteran reported a history of
receiving medication for depression and anxiety. Following
mental health examination, the veteran was diagnosed with
depressive disorder, not otherwise specified by history and
rule out adjustment disorder with anxiety features.
An August 2002 VA treatment record shows the veteran reported
being attacked by several gay men while in service. They got
his clothes off and tried to rape him, but he was able to
fight them off. Another time, he was assaulted by two gay
men on board ship and fought them off. They beat him so
badly, he had to be taken to the hospital. The veteran did
not report these incidents at that time because he thought no
one would believe him. He reported nightmares related to
these events and thought about it daily. He had recently had
to discuss these events when forced to submit to a polygraph
test in connection with his being on probation after exposing
himself. The diagnosis was PTSD and major depression.
In September 2002, the veteran underwent private evaluation
in regard to his probation for public exposure. He indicated
that he was abused by gay males while in service and did not
disclose this until now.
A November 2002 VA treatment record shows the veteran
described an anxiety attack. He no longer had nightmares.
He had intrusive thoughts three times per week and flashbacks
once a week. Following examination, the provisional
diagnosis was PTSD, bipolar II, and depression, treated with
medication.
In March 2003, the veteran submitted his stressor statement.
He indicated the incident in service occurred approximately
in October 1970. On his way to the ship in Charleston, South
Carolina, two fellow shipmates were touching him in an
improper place. They stopped by the side of the road, the
two men dragged the veteran out of the car, and physically
assaulted him. He was treated for face and body wounds.
After he returned to the ship, he was warned by the attackers
to keep it quiet. The two men were barbers on board ship.
In April 2003, the veteran underwent VA examination. His
claims file was reviewed. He complained of anxiety attacks
and shaking. In May 2001, he was charged with indecent
exposure. He was forced to attend sex offender counseling,
and his memory of the in-service assault resurfaced during
this counseling. The veteran had weekly nightmares about his
assault since May 2002. He denied intrusive thoughts.
Following examination, the diagnosis was anxiety disorder,
not otherwise specified. The examiner noted the absence of
objective documentation of the veteran's claimed in-service
assault.
A May 2003 private treatment record found the veteran was
unable to work due to the tremors of his hands. He was noted
to have PTSD. The symptoms first appeared in 1998.
In June 2007, the veteran underwent VA examination. He spoke
about being involved in an assault and held in prison for
three months in 2001. He was traumatized by that time in
jail. The veteran indicated he was receiving Social Security
disability for his essential tremor disorder. He denied that
he avoided things that reminded him of trauma. He denied any
physiological or psychological response to things that
reminded him of trauma. He denied an exaggerated startle
response and, in general, did not endorse symptoms of PTSD
during the interview.
On examination, the veteran's memory was impaired. Since the
veteran did not endorse symptoms of PTSD, the examiner
concluded he did not meet the diagnostic criteria for the
diagnosis. The veteran did meet the diagnostic criteria for
anxiety disorder, not otherwise specified; major depressive
disorder; personality disorder, not otherwise specified;
alcohol dependence; and nicotine dependence. The veteran's
anxiety and depression were likely secondary to the
difficulties manifested by his personality disorder and the
associated chronic stress. His abuse of alcohol contributed
to his anxiety and depressive symptoms. There was no
evidence to suggest that any event that occurred in service
exacerbated the veteran's personality disorder or other
disorders. It was clear the veteran's personality disorder
existed prior to service, manifested during service, and
resulted in his discharge by reason of unsuitability.
The examiner did not find evidence of an anxiety disorder in
the veteran's service records; he noted the April 2003
examiner's comment that medical service records confirmed the
presence of an anxiety disorder. The Axis I diagnoses were
anxiety disorder, not otherwise specified; major depressive
disorder; alcohol dependence; and nicotine dependence. The
Axis II diagnosis was personality disorder, not otherwise
specified.
PTSD
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with VA regulations; a link, established by
medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. If the evidence establishes
that the veteran engaged in combat with the enemy and the
claimed stressor is related to that combat, in the absence of
clear and convincing evidence to the contrary, and provided
that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d)
(pertaining to combat veterans).
The Board observes that the veteran did not engage in combat
with the enemy. The veteran's service personnel records do
not show that he received any citations or awards for
participation in combat with the enemy. See 38 C.F.R. §
3.304(f). Therefore, the provisions of 38 U.S.C.A. § 1154
(West 2002) are not applicable.
Where a determination is made that the veteran did not
"engage in combat with the enemy," or the claimed stressor
is not related to combat, the veteran's lay testimony alone
will not be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such
cases, the record must contain service records or other
corroborative evidence which substantiates or verifies the
veteran's testimony or statements as to the occurrence of the
claimed stressor. See West (Carlton) v. Brown, 7 Vet. App.
70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
If a claim for PTSD is based on an in-service personal
assault, 38 C.F.R. § 3.304(f)(3) provides that evidence from
sources other than the veteran's service records may
corroborate the veteran's account of the stressor incident.
Examples of such evidence include, but are not limited to:
records from law enforcement authorities, rape crisis
centers, mental health counseling centers, hospitals, or
physicians; pregnancy tests or tests for sexually transmitted
diseases; and statements from family members, roommates,
fellow service members, or clergy. Evidence of behavior
changes following the claimed assault is one type of relevant
evidence that may be found in these sources. Examples of
behavior changes that may constitute credible evidence of the
stressor include, but are not limited to: a request for a
transfer to another military duty assignment; deterioration
in work performance; substance abuse; episodes of depression,
panic attacks, or anxiety without an identifiable cause; or
unexplained economic or social behavior changes. VA will not
deny a PTSD claim that is based on in-service personal
assault without first advising the claimant that evidence
from sources other than the veteran's service records or
evidence of behavior changes may constitute credible
supporting evidence of the stressor and allowing him or her
the opportunity to furnish this type of evidence or advise VA
of potential sources of such evidence. VA may submit any
evidence that it receives to an appropriate medical or mental
health professional for an opinion as to whether it indicates
that a personal assault occurred. Id.
After reviewing the evidence of record, the Board must
determine if the veteran has PTSD. A review of the medical
evidence, to include the two VA examinations, VA treatment
records, and private treatment records, indicates that there
is not a diagnosis of PTSD conforming to the DSM-IV criteria.
Specifically, the April 2003 VA examiner indicated that,
while the veteran exhibited some symptoms associated with
PTSD, a diagnosis could not be given. In addition, the
August 2007 VA examiner stated that the veteran did not
demonstrate the symptom criteria necessary for a diagnosis of
PTSD. In this regard, the June 2007 VA examiner noted that
it was significant that the veteran showed no symptoms of
avoidance or exaggerated startle response. In general, the
veteran did not exhibit symptoms of PTSD. While the
examiners have diagnosed the veteran with numerous other
psychiatric disorders, they found that he did not meet the
criteria for PTSD.
Service connection cannot be granted if there is no present
disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304,
3.306 (2007). The Court has held that a condition or injury
occurred in-service alone is not enough; there must be a
current disability resulting from that condition or injury.
See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992);
Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the
absence of proof of a present disability, there can be no
valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). As 38 C.F.R. § 4.125 requires that the diagnosis of
a mental disorder conform to the DSM-IV, the Board finds that
there is no current diagnosis of PTSD of record and service
connection for PTSD cannot be granted.
The Board notes that the August and November 2002 VA
outpatient treatment records indicate the veteran has a
diagnosis of PTSD. However, these are less probative.
First, the November 2002 record indicated the PTSD was only a
provisional diagnosis. As this is not a final diagnosis, it
is not one upon which the Board will find that such disorder
is present. With regard to the August 2002 record, the
provider indicated the veteran thought about his attack daily
and experienced nightmares. However, this record does not
show that a comprehensive evaluation of PTSD was given with
respect to the criteria in the DSM-IV. In contrast, the June
2007 VA examiner specifically stated that the veteran did not
demonstrate the criteria needed for a diagnosis of PTSD and
identified which specific criteria were not met. Therefore,
the Board finds that the August 2002 record is insufficiently
detailed and does not provide an opportunity to explore the
basis of the opinion. Furthermore, it is the only evidence
of record showing any diagnosis of PTSD, with numerous other
records indicating the disorder is not present. See Murphy
v. Derwinski, 1 Vet. App. 78, 81(1990). These 2002 records
are far less probative than the more thorough VA examination.
The Board notes the veteran's argument that he has a current
diagnosis of PTSD. This determination, however, is not a
matter for an individual without medical expertise. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while
the Board has considered the veteran's assertions, they do
not outweigh the competent medical evidence of record which
does not show that the veteran has a current diagnosis of
PTSD.
In summary, the most probative evidence establishes that the
veteran does not have PTSD. Thus, the preponderance of the
evidence is against the claim and there is no doubt to be
resolved. Consequently, service connection for PTSD is
denied.
Acquired Psychiatric Disorder
Although there is no competent diagnosis of PTSD in the
record, the veteran has been assigned other psychiatric
diagnoses on examination.
The record shows the veteran was diagnosed in service with
emotional immature personality disorder, which was noted to
have existed prior to service. With regard to the
presumption of soundness, to rebut this presumption under 38
U.S.C.A. § 1111, VA must show by clear and unmistakable
evidence both that the disease or injury existed prior to
service and that the disease or injury was not aggravated by
service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant
v. Principi, 17 Vet. App. 116, 123-30 (2003) (detailing
legislative history relating to presumption of soundness and
the possibility that the omission of the relevant language
from 38 C.F.R. § 3.304(b) was unintentional and that 38
C.F.R. § 3.304(b) should be construed as consistent with the
VA's pre-February 1961 regulations).
The only disorder that is noted to have existed prior to
service is the veteran's immature personality disorder.
Personality disorders are not diseases or injuries within the
meaning of applicable legislation. 38 C.F.R. § 3.303(c),
4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).
Since service connection for a personality disorder must be
denied as a matter of law; presumption of soundness and in-
service aggravation of that personality disorder is
irrelevant.
As to the veteran's other psychiatric manifestations, he has
been diagnosed since separation with neurosis, depressive
reaction, depressive disorder not otherwise specified, and
anxiety disorder not otherwise specified. With regard to
these diagnoses, the evidence shows they are not related to
the veteran's active duty. Specifically, a June 1971 Board
of Psychiatric Specialists determined the veteran's
personality disorder in service was not related to his post-
service diagnosis of depressive neurosis. Furthermore, the
June 2007 VA examiner determined that the veteran's service
medical records contained no evidence of an anxiety disorder.
Instead, the veteran's anxiety and depression were likely
secondary to his life difficulties, including his personality
disorder and the associated chronic stress. In addition, the
veteran's service did not exacerbate any of his diagnosed
disorders. It was clear to the examiner that it was the
veteran's personality disorder that manifested during service
and resulted in his discharge by reason of unsuitability. As
indicated above, service connection for a personality
disorder is precluded by law.
The Board notes the April 2003 examiner's statement that an
anxiety disorder was confirmed in service. However, this is
inaccurate. Although the veteran complained of anxiety in
service, his symptoms were found to be due to a personality
disorder. A psychoneurotic anxiety disorder was not
diagnosed in service, and there is no competent evidence
indicating that the inservice diagnosis of a personality
disorder was incorrect. The June 2007 examiner considered
this misstatement in his comprehensive opinion.
It is primarily contended that the veteran's currently
diagnosed anxiety and depressive disorders are the result of
an assault in service. The veteran has not been entirely
consistent in his descriptions of inservice sexual assault.
Although in August 2002 he referred to two separate assaults,
his other references to inservice assault in the medical
records and at the personal hearing referred to only one
assault. The service medical records show that he reported
being beaten in November 1969; these records do not
corroborate that any assault was sexual in nature. However,
the service medical records also clearly show that his
psychiatric symptoms predated that incident, and the
psychiatric findings subsequent to that incident continued to
be that the veteran had a personality disorder, consistent
with the preincident findings. Moreover, the June 2007
examiner stated that there was no evidence to suggest that
any event in service exacerbated his personality disorder or
any other disorders. The competent evidence, including the
2002 private and VA medical records, do not provide a nexus
between any current anxiety, depressive or bipolar disorder
and an inservice assault.
The Board also notes the September 2007 statement from the
veteran and his wife disagreeing with certain details in the
June 2007 examination report. However, the examiner reviewed
the record and apparently listened to the history as reported
by the veteran. There is no indication that the veteran did
not understand the examiner's questions because of the
effects of medication, and the Board finds no basis for
rejecting the conclusions of the examiner.
Therefore, the Board concludes that service connection is not
warranted for any acquired psychiatric disorder as a result
of assault, sexual or otherwise, in service. While the
veteran contends that his diagnosed disorders began with the
assault incident in service, he does not have the medical
training necessary to provide a competent opinion on this
matter. See Espiritu v. Derwinski, supra. Instead, the
Board must rely on the opinions of trained medical
professionals. Such competent evidence of record shows the
veteran's acquired psychiatric disorders are not related to
inservice assault, and there is no doubt to be resolved.
ORDER
Service connection for post-traumatic stress disorder is
denied.
Service connection for an acquired psychiatric disorder as a
result of sexual assault is denied.
____________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs